Thursday, 2 January 2014

European Court ruling condemns mass surveillance

The Advocate General of the European Court of
Justice today gave an important opinion in
our favour in a case brought by Digital Rights Ireland to challenge European
mass surveillance law.

The challenge – which we started
in 2006 – is to the Data Retention Directive. This is a law which
requires ISPs and telecoms companies to record details of all your internet and
telephone use – logging details of who you ring or text, where you travel and
who you email – and to record that information for up to two years. We argue
that this constitutes an unjustified invasion of the right to privacy and in an
interim ruling the Advocate General has agreed, holding that the law is a
“particularly serious” interference with individual privacy which creates a:

faithful and exhaustive map
of a large portion of a person’s conduct strictly forming part of his private
life, or even a complete and accurate picture of his private identity.

The Advocate General accepted our argument that
storing this information on all citizens created an “increased risk” that it
could be used for unlawful, fraudulent and malicious purposes against them –
something we have already seen in Ireland where a Garda sergeant has abused the
system to spy on a former lover and where it has been used to spy on
journalists.

The Advocate General also held that this type of
surveillance would have a “chilling effect” on freedom of expression, and went
on to say that the Directive failed to provide even “minimum guarantees”
regarding access to or use of the information collected on all citizens.
According to the Advocate General the Directive therefore “is as a whole
incompatible with Article 52(1) of the Charter of Fundamental Rights of the
European Union”.

According to the Advocate General:

the collection and, above
all, the retention, in huge databases, of the large quantities of data
generated or processed in connection with most of the everyday electronic
communications of citizens of the Union constitute a serious interference
with the privacy of those individuals, even if they only establish the
conditions allowing retrospective scrutiny of their personal and professional
activities. The collection of such data establishes the conditions for
surveillance which, although carried out only retrospectively when the data are
used, none the less constitutes a permanent threat throughout the data
retention period to the right of citizens of the Union to confidentiality in
their private lives. The vague feeling of surveillance created raises very
acutely the question of the data retention period…

the effects of that
interference are multiplied by the importance acquired in modern societies by
electronic means of communication, whether digital mobile networks or the
Internet, and their massive and intensive use by a very significant proportion
of European citizens in all areas of their private or professional activities.
[emphasis added]

A final judgment on our case will be delivered next
year. In approximately 80% of cases the European Court of Justice follows the
opinion of the Advocate General. Even pending the full judgment, however, this
is already a significant step forward in the very first case of this nature to
be brought to the ECJ and confirms the importance of our case.